Neese v. Becerra
| Decision Date | 11 November 2022 |
| Docket Number | 2:21-CV-163-Z |
| Parties | SUSAN NEESE, et al., Plaintiffs, v. XAVIER BECERRA, in his official capacity as the Secretary of the United States Department of Health and Human Services, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
In his Bostock dissent, Justice Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided. Justice Alito warned: “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court's reasoning.” 140 S.Ct. 1731, 1783 (2020) (Alito, J., dissenting); see also Id. at 1781 (Alito, J., dissenting) ().
And here we are ....
Before the Court is Plaintiffs Susan Neese and James Hurly's Motion for Summary Judgment (“Plaintiffs' Motion”) (ECF No. 46) and Defendants' Motion for Summary Judgment (“Defendants' Motion”) (ECF No. 55).[1] Having considered the pleadings and applicable law, the Court GRANTS IN PART Plaintiffs' Motion and GRANTS IN PART Defendants' Motion.
Section 1557 of the Affordable Care Act prohibits discrimination “on the basis of sex.” See 42 U.S.C. § 18116(a) (). In Bostock, the Supreme Court held Title Vil's “because of. . . sex” terminology prohibits “sexual orientation” and “gender identity” discrimination in employment.[2] See generally 140 S.Ct. 1731. Citing Bostock, the United States Department of Health and Human Services (“HHS”) announced it would “interpret and enforce” Section 1557's prohibition on discrimination “on the basis of sex” to include “on the basis of sexual orientation” and “on the basis of gender identity.” See generally United States Department of Health and Human Services, Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86 Fed.Reg. 27,984 (May 25 2021) (“Notification”).
Plaintiffs - two Texas-based physicians - allege Defendants misread Bostock and argue that healthcare providers may continue sex-specific medical decisions relevant to “gender identity” “so long as one does not engage in ‘sex' discrimination when doing so.” ECF No. 11 at 5. Specifically, Plaintiffs allege neither Section 1557 nor Bostock prohibits such discrimination, “as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex.” ECF No. 17 at 16. Plaintiffs “object only to the Secretary's claim that Bostock defined ‘sex' discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity.” Id. Plaintiffs state they “fully intend to comply with Bostock and its interpretation of ‘sex.'” Id.
Plaintiffs make sex-specific decisions relevant to “gender identity” in their medical practices - and both receive federal money subject to Section 1557. See generally ECF No. 11. Dr. Neese “has treated patients suffering from gender dysphoria in the past and has on occasion prescribed hormone therapy for them.” Id. at 5 6. But Dr. Neese “does not believe that hormone therapy or sex-change operations are medically appropriate for everyone who asks for them, even if those individuals are suffering from gender dysphoria, and she will on occasion decline to prescribe hormone therapy or provide referrals for sex-change operations.” Id. at 6. “Dr Neese is categorically unwilling to prescribe hormone therapy to minors who are seeking to transition, and she is equally unwilling to provide referrals to minors seeking a sex-change operation.” Id. She “believes that it is unethical to provide ‘gender affirming' care to transgender patients in situations where a patient's denial of biological realities will endanger their life or safety.” Id.
Plaintiffs allege “Dr. Neese has treated many transgender patients ... in the past, and she expects to continue doing so in the future.” Id. Dr. Neese claims she “is likely to encounter minor transgender patients who will request hormone therapy and referrals for sex-change operations that she is unwilling to provide, as well as adult transgender patients who will deny or dispute their need for preventive care that corresponds to their biological sex, and she intends to provide care to these individuals in a manner consistent with her ethical beliefs.” Id.
Dr. Hurly “recognizes that some biological men may identify as women (and vice versa).” Id. at 7. In his practice, Dr. Hurly “has encountered situations ... when he must insist that a patient acknowledge his biological sex rather than the gender identity that he asserts.” Id. Plaintiffs provide an example: Dr. Hurly “once diagnosed a biological male patient with prostate cancer, but the patient refused to accept Dr. Hurly's diagnosis because he identified as a woman and insisted that he could not have a prostate.” Id. Dr. Hurly “explain[ed] to this patient that he was indeed a biological man with a prostate, and that he needed to seek urgent medical treatment for his prostate cancer.” Id. Plaintiffs claim, “Dr. Hurly has treated transgender patients in the past, and he expects to continue doing so in the future.” Id. They allege: “Dr. Hurly is likely to encounter transgender patients who will deny or dispute their need for health care that corresponds to their biological sex, and he intends to provide care to these individuals in a manner consistent with his ethical beliefs.” Id.
Plaintiffs bring two causes of action: one under the Administrative Procedure Act (“APA”) and one under the Declaratory Judgment Act (“DJA”). Id. at 10. Plaintiffs argue Section 1557 only prohibits “sex” discrimination, which means a provider would have acted differently towards an identically situated member of the opposite biological sex. Id. As for relief, Plaintiffs ask that the Court “hold unlawful and set aside” the Notification, “enjoin” Defendants “from using or enforcing the interpretation of [S]ection 1557 that appears in the Notification,” “declare that [S]ection 1557 does not prohibit discrimination on account of sexual orientation and gender identity,. . . but that it prohibits only ‘sex' discrimination, which means that provider would have acted differently toward an identically situated member of the opposite biological sex.” ECF No. 11 at 10-11.
The Court previously denied Defendants' motion to dismiss and granted Plaintiffs' motion for class certification. See generally ECF Nos. 30, 65. The Court certified a class of all healthcare providers subject to Section 1557. Plaintiffs now move for summary judgment on each claim. See generally ECF No. 46. Defendants also seek summary judgment, asking that the Court render judgment in Defendants' favor on Plaintiffs' two claims and dismiss this action. See generally ECF No. 55.
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if its existence or non-existence “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]he substantive law will identify which facts are material.” Id. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “‘On cross-motions for summary judgment, [the Court] review[s] each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.'” Texas v. Rettig, 987 F.3d 518, 526 (5th Cir. 2021) (quoting Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010)).
When reviewing summary-judgment evidence, the court must resolve all reasonable doubts and draw all reasonable inferences in the light most favorable to the non-movant. Walker v. Sears, Roebuck & Co., 853 F.2d 355,358 (5th Cir. 1988). A court cannot make a credibility determination when considering conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. If some evidence supports a disputed allegation, so that “reasonable minds could differ as to the import of the evidence,” the court must deny the motion. Id. at 250.
The issues raised in the motions for summary judgment are whether: (1) Plaintiffs possess standing; (2) the Notification is not in accordance with the law; and (3) Section 1557 prohibits discrimination on the basis of SOGI. The Court will address standing before proceeding to the two merits arguments.
The judicial power of federal courts is limited to certain “cases” and “controversies.” U.S Const, art. Ill. § 2; see also June Medical Servs. L.L.C, v. Russo, 140 S.Ct. 2103, 2117 (2020). The case-or-controversy requirement requires a plaintiff to establish that he has standing to sue. See Gill v. Whitford, 138 S.Ct. 1916,1923 (2018); Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473 (5th Cir. 2013) (). Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), To have standing, the party invoking federal jurisdiction must establish he suffered: (1) an “injury in fact” that is “concrete and particularized” and ...
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